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  • Unreported Judgment

Erwin Hafner v Herta Hafner


[1987] FC 97


Appeal No. 71 of 1987



The Chief Justice (Sir Dormer Andrews)

Mr. Justice Kelly S.P.J.

Mr. Justice Ryan


(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)




(First Plaintiff) Respondent

- and -



(Second Plaintiff) Respondent

- and -



(Second Defendant) Respondent

- and -



(Defendant by Election) Appellant


THE CHIEF JUSTICE: I am going to ask my brother Ryan to deliver the principal judgment.

MR. JUSTICE RYAN: The plaintiffs who are a husband and wife were injured in a collision on the Bruce Highway on 21 November 1983. They were passengers in a Mercedes bus owned by the first defendant and driven by one Els.

The bus was following a van which was owned and, as I understand, driven by the second defendant. It was itself being followed by an International semi-trailer truck owned by the third defendant and driven by one Hose. All vehicles were travelling in a northerly direction.

The learned trial judge has found that the highway at this point is hazardous in wet weather and is very smooth. It had been raining heavily all day and was still raining at the time of the collision. The learned trial judge made a number of findings in relation to liability which have not been challenged. Essentially what he found was that the second defendant intended to make a right-hand turn into a caravan park on the right-hand side of the road going north. He said that he ought to have slowed the speed of his van at or about the centre line and then stopped and waited until it was safe to turn across the path of the oncoming traffic, but what he did was to slow gradually without giving any rearward indication of braking. He then moved the van over to the left of the road whilst continuing to slow down. One-third of his vehicle was off the bitumen and at the point where he stopped there was to the left of the road a cleared area. The driver of the first defendant's vehicle had apparently assumed that the second defendant was going to travel into what he thought was a road or a track, so he braked and moved around to the right to pass the van, putting on his blinkers, and when he was two-thirds of the way alongside the van the second defendant; without any warning, turned to the right. Els veered sharply to his right and followed the van around and it was found that while he was doing this the semi-trailer owned by the third defendant and driven by Hose collided with the rear of the bus. It had been travelling from the rear.

The learned trial judge found that the second defendant was negligent and it is a finding which cannot be assailed on the evidence which is before us, and indeed it was not. He said that Els was not negligent at all in the circumstances and there has been no appeal against that part of His Honour's decision.

In relation to the third defendant's vehicle, he has found that it was a 23-ton truck with an all-up weight of 38 tons and it had followed the bus driven by Els for 10 to 15 kilometres. He states in his findings that Hose stayed four to five lengths (about 250 feet) from the bus and was travelling at 70 kilometres per hour. He saw the second defendant's van ahead of the bus and saw it pulled to the left-hand side, and he saw that the bus moved to the right-hand side as if to overtake the van. What the driver of the semi-trailer did was to go to the right-hand side of the road and to brake heavily. His truck “locked up” and skidded down the wet road and his truck collided with the bus in front which had stopped. The learned trial judge has found that Hose was negligent because his speed was too great for a truck of its “all-up weight” in conditions of rain and on a slippery road. He said he could not pull up in time. He knew the highway well, and His Honour found that the third defendant through its driver was also negligent. That finding seems to me to be clearly open to His Honour on the evidence which had been put before him and to be a correct finding.

The only substantial point in dispute is in relation to apportionment. In this case His Honour found that both drivers departed from the standard of care expected from a reasonable man and that the actions of both contributed substantially to the cause of the collision, but he apportioned liability one-third to the second defendant and two-thirds to the third defendant and the defendant by election.

It was this part of His Honour's judgment which was substantially the matter with which this appeal was concerned. In an appeal to the Privy Council from the Federal Court of Malaysia in Ramoo v. Swee (1971) 3 A.E.R. 320 at p. 327 Their Lordships observed:

“Their Lordships are not sure that had they been trying the case they would in all circumstances have attributed so much of the blame to the first defendant, but it is only in exceptional cases that an appellate court is justified in interfering with an apportionment of liability made by the trial judge.”

Though it is no longer correct to limit the right of an appeal court to interfere in situations where the circumstances are exceptional, nevertheless an appeal court should not interfere unless it is satisfied that the discretion of the trial judge in the apportionment of responsibility has miscarried. In this case no error of fact or law has been shown, nor has any other ground been shown for concluding that the discretion of the trial judge had not been properly exercised.

In my opinion the appeal should be dismissed and the appellant should pay the costs of the respondents to be taxed.


MR. JUSTICE kelly: I agree.

THE CHIEF JUSTICE: The order of the Court is that the appeal is dismissed with costs to be taxed.


Editorial Notes

  • Published Case Name:

    Erwin Hafner v Herta Hafner

  • Shortened Case Name:

    Erwin Hafner v Herta Hafner

  • MNC:

    [1987] FC 97

  • Court:


  • Judge(s):

    The Chief Justice (Sir Dormer Andrews), Mr. Justice Kelly S.P.J. and Mr. Justice Ryan

  • Date:

    21 Oct 1987

Litigation History

No Litigation History

Appeal Status

No Status